England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOD GREEN CROWN COURT
His Honour Judge Pawlak
T20080986

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/07/2010

Lord Justice Leveson :

1. On 31 July 2009, in the Crown Court at Wood Green before Judge Pawlak and a jury, this appellant was convicted by majority verdict (10:2) of five counts of rape of a female child under 13. On 18 September 2009, he was sentenced, on each count, to an indeterminate sentence of Imprisonment for Public Protection under section 225 Criminal Justice Act 2003, with a minimum term of 7 years. For a further offence of failing to comply with notification requirements (to which he had pleaded guilty), he was sentenced to a term of 6 months imprisonment concurrent. In relation to a ruling on the admissibility of evidence of propensity, he appeals by leave of the single judge; a further ground of appeal in relation to the summing up is renewed.
2. The background can be shortly summarised. In 1987, the grandmother of the complainant ("Z") came to the UK, followed, in 1994, by her mother and uncle (the appellant). Z, then a baby, stayed in Jamaica but, shortly after her twin brothers were born in 1994, she came to this country. In October 2001, Z's mother married a man who then became Z's step-father ("the step-father").
3. An allegation that Z's mother had assaulted her surfaced in March 2004 and was investigated by social services. On 25 July 2004, Z went to Jamaica for some seven weeks and then returned to Britain: there was no further social services involvement with the family. In February 2006, Z's mother took her to Jamaica and returned to Britain alone although she, the stepfather and Z's brothers then visited Jamaica for 19 days from 28 March 2006.
4. Some time before August 2006, Z made her first complaint, relating to the step-father, to Z's aunt and, on 1 November 2006, Z was seen by a doctor as a result of vaginal discharge on her knickers seen by her aunt. A letter dated 26 December 2006, written in pencil by Z to her mother, and a copy of that letter written in pen and dated 23 January 2007 surfaced in the early part of 2007. The letter detailed abuse that she had suffered as well as intimating that she had also been abused as a younger child. Sometime in March 2007, the aunt showed the letter to Z's grandmother, then on holiday in Jamaica. During the same month, the complaint was repeated to another female relative over the telephone. Finally, in April 2007, Z's mother received the January letter in England.
5. On 10 February 2008, Z, then aged 14, landed at Gatwick Airport having travelled alone from Jamaica. While at the airport, she informed a member of the airline staff that she was frightened to go home; she complained that, when she had been living in London two years previously, she had been raped by her uncle. She also complained about her stepfather. Z repeated the allegations to two armed officers.
6. Not surprisingly, this complaint was taken very seriously and, on 14 February, she was interviewed by the police. In brief, she said that she had first been raped in March 2005, after her 11^th birthday, at her grandmother's address, where the appellant was living. She used to stay at her grandmother's home on Friday nights before going to the local church on Saturdays and she was then raped almost every week from then until September 2005 when the appellant left the house. In short, she alleged that she and one of her brothers would sleep in the appellant's room. One night the appellant came into the room, crawled over her brother so that he was in the middle of the bed, and kissed her. She told him he was bad. He didn't say anything and they fell asleep. Later he woke up and started rubbing her leg before turning her over onto her back and lying on top of her. He removed her and his underwear, still managing to hold her down, and put his penis in her vagina. She tried to get him off but he was too strong. Afterwards, he said "Don't tell or else". He put her brother back in the middle of the bed and just went to sleep. Her brother slept through it. The rapes carried on almost every week.
7. At the time that she complained of rape, Z also alleged that the stepfather had indecently assaulted her, also on a regular basis, commencing a couple of months after the rapes started. On 11 July 2008, the appellant was arrested at his girlfriend's address; he was interviewed and responded in terms that foreshadowed his defence: he had never had sex with Z and although he had slept at his mother's house, he had not done so very often.
8. The appellant and the stepfather (who had also been arrested and interviewed) were jointly indicted. The appellant initially faced six counts to represent the series of rapes that she alleged; the judge directed an acquittal in respect of one count because Z had been unable to recall that there was a period of time, encompassed by that count, when her grandmother was in fact in America: thus the jury considered five allegations. For the sake of completeness, we add that the stepfather was charged with a series of eight counts of sexual assault: he was acquitted on all counts by the jury.
9. For the purposes of this judgment, and the analysis of the grounds of appeal, it is unnecessary further to rehearse the detail of the allegations or the evidence called either by the prosecution or the defence. What is important, however, is that the Crown sought also to rely, as evidence of propensity, on the fact that, in November 1997, the appellant had been convicted of an offence of rape. The defence contended that this single conviction, in very different circumstances, was not capable of amounting to evidence of propensity and, therefore, did not fall within the gateway described in s. 101(d) and 103(1) and (2) of the Criminal Justice Act 2003 ("the Act").
10. The circumstances of that conviction for rape were undeniably serious. In short, with two or three others, on 24 February 1997, the appellant (albeit then only 16 years of age) had participated in a 'gang' rape of a 15 or 16 year old girl of his acquaintance in a car park; he had been the first to rape the girl. The allegation had been contested on the grounds that intercourse was consensual but he had been convicted by a jury and sentenced to a term of 5 years detention under s 53(2) of the Children and Young Persons Act 1933.
11. Before outlining the argument advanced before the trial judge and repeated in this court, it is necessary to explain the rather unusual course that was taken before the judge. In the normal course of events, in order to justify a ruling in its favour, the Crown had, first, to establish pursuant to s. 103(1)(a) of the Act that the appellant had a propensity to commit offences of the kind with which he was charged (in circumstances when it was not the case that having such a propensity made it no more likely that he was guilty of the offences or any one of them). In addition, where, as here, the Crown sought to rely on the appellant's conviction for an offence of the same category and description as the one with which he was charged, such reliance was not possible if the court was satisfied, by reason of the length of time since the conviction or for any other reason, that it would be unjust for it to apply in his case: see s. 103(2) and (3) of the Act.
12. In fact, Mr Alper Riza Q.C., for the appellant, did not ask the court to rule on whether the length of time since the conviction or any other circumstance rendered it unjust to admit it. Because it had been decided that it was part of the defence case (should it be necessary to deploy it) that Z knew of the conviction, and had deliberately targeted the appellant to add credibility to a false allegation, he only asked the judge to rule on whether the conviction was capable of amounting to evidence of propensity without going on to consider s 103(3) of the Act (or, for that matter, s 78 of the Police and Criminal Evidence Act 1984). On the basis that the judge ruled that it was, Mr Riza made it clear that he would then wish to agree to the evidence being admitted (under s 101(1)(a) of the Act) so as to be able to make the forensic point that it had been agreed that the jury should hear this prejudicial material because it went some way to explaining why the appellant had been targeted by Z either deliberately or in her imagination.
13. The argument advanced by Mr Riza was grounded in the approach identified in R v. Hanson [2005] 2 Crim App R 21, in which the Vice President, Rose LJ made it clear (at para. 9):

"There is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged. … Circumstances demonstrating probative force are not confined to those sharing striking similarity."

14. He submitted that the previous conviction for rape was incapable of showing propensity for sex with young girls. At that time, the appellant was 16 and the victim 15; there was (or at least it would be reasonable so to assume) a degree of peer pressure. The fact that a teenager indulged in non-consensual sex, thereby demonstrating obvious lack of self control, did not reveal a propensity for such conduct in a mature adult, more in control of his sexual drive. In any event, this was very different from an alleged paedophilic rape of the 11 year old niece at his mother's home by a man then aged 25.
15. The judge's ruling was clear. He said:

"Mr Riza asked me to confine myself to saying whether the conviction for rape was capable of demonstrating a propensity and the essence of that rape was the taking advantage sexually of a 16 year old girl against her will. This case concerns a younger girl, again taken advantage of, if the allegation is true. The conviction for rape demonstrates a clear propensity for sex with a young girl in circumstances where for whatever reason she is not consenting. It may also show an appetite for such unlawful sex. It is therefore clearly capable of demonstrating a propensity."

16. In this court, Mr Riza has repeated the argument to which we have referred, adding what he described as the evidence based observations (albeit in a very different context) from the Definitive Guideline of 'Overarching Principles – Sentencing Youths' issued by the Sentencing Guidelines Council. That, of course, concerned the approach which the court should adopt when approaching the question of sentencing young people, but he pointed to the requirement (at para 3.5) to consider whether a young offender's conduct "has been affected by inexperience, emotional volatility or negative influences" and to one of the factors that had led to a different approach to the sentencing of young people who offend identified in these terms:

"offending by a young person is frequently a phase which passes fairly rapidly and therefore the reaction to it needs to be kept well balanced …"

17. Mr Riza argues that the possibility that the appellant was passing through such a phase points away from propensity and should militate against labelling a man, seven years further on in his life, as having a propensity to sexual violence. Mr Robin Milic, for the Crown, on the other hand, contends that the fact that the appellant was then a teenager is simply one of the factors to be taken into account and that although there is a difference between gang rape and paedophilia, both involved the use of real and additional pressure, in the case of gang rape by added numbers and in the case of rape of a child by age and relationship.
18. We do not find the reference to the overarching principles in relation to youths of assistance. They are designed to identify to sentencing judges what ought to be considered when sentencing youths for offences committed while going through the phase to which reference is made. A conviction while a young person might be the consequence of immaturity; time will tell whether the offender does change and avoids offending when an adult. But that does not alter the proposition that such a prior conviction may be evidence of propensity and, in our judgment, the fact that both the conviction and these allegations contain within them an underlying abuse of power in the way that Mr Milic suggests is sufficient to justify the conclusion that the judge reached (that it was capable of being evidence of propensity), notwithstanding the differing ages of the victim in the first case and Z in the second.
19. Whether the lapse of time might have caused the learned judge, under s. 103(3) of the Act, to consider that it would be unjust to admit the conviction was not tested but, for the avoidance of all doubt, we can well understand the way in which Mr Riza wished to use the suggestion of Z's knowledge of the conviction to defuse its impact by contending that he was chosen by her because of his vulnerability arising out of it. In that way, however, the jury were driven back to decide, in relation to these allegations, their view of the credibility of Z and the appellant. This ground of appeal fails.
20. Mr Riza also sought to renew his application to advance a second ground of appeal (for which the single judge did not grant leave). This concerned the observations of the learned Judge during the course of his summing up which concerned the approach which should be adopted to Z's failure to complain of rape earlier than she had.
21. The learned judge dealt with this issue by warning the jury, in conventional terms, about the potential prejudice caused to a defendant confronted by an allegation many years later and the difficulties that might arise, observing that the jury need only imagine what it would be like to have to answer questions about events said to have taken place some years ago to appreciate the problems which may be caused by delay. He cautioned the jury to forget generalisations or stereotypes but to approach the task dispassionately and not because of feelings of sympathy for a complainant or for a defendant. He went on:

"You are entitled to consider why these matters did not come to light sooner. The defence say that it is because they are not true. They say that the allegations are entirely fabricated, untrue and they say that had the allegations been true you would have expected a complaint to be made earlier and certainly once either defendant … was out of the way .. of the complainant. The defence say that she could have complained to her mother or her grandmother before she left the country or to her mother on the plane, or to the headmaster of the school … or to the social worker who came on one occasion to speak to her (although again bear in mind there is no evidence that the complainant was ever given any contact details or instructions as to how to make such a complaint, or that she could have complained sooner to a family or extended family member once she was safe in Jamaica.

On the other hand the prosecution say that it is not as simple as that. When children are abused they are often confused about what is happening to them and why it is happening. They are children and if a family member is abusing them in his own home or their own home, to whom can they complain? A sexual assault, if it occurs, will usually occur secretly. A child may have some idea that what is going on is wrong but very often children feel that they are to blame in some way, notwithstanding circumstances which an outsider would not consider for one moment them to be at blame or at fault. A child can be inhibited for a variety of reasons from speaking out. They may be fearful that they may not be believed, a child's word against a mature adult, or they may be scared of the consequences or fearful of the effect upon relationships which they have come to know, or their only relationship.

The difficulties, you may think, are compounded in the family situation where they involve a family member for whom the feelings of the child may be ambivalent and uncertain. The child may not like the abuse if it happens but there may be aspects of the abuser, if there is one, that cause the child to view them with some degree of affection. The relatives may be the only relatives the child has. The fallout from any disclosures can be unpredictable and sometimes very worrying, particularly if the child does not believe that she will be believed. If the adult has an imposing personality or is someone of who [sic] they are perhaps afraid or who may have overborne them or who has power over them or who may even have expressly warned them not to tell, these are all matters which could inhibit disclosure.

Experience shows that people react differently to the trauma of a serious sexual assault where it has happened. There is no one classic response when it happens and I speak not only of children. Some may be compliant and submissive, some may disassociate themselves from what is happening; they may blank it out, they may freeze, others may protest and resist, they may scream and shout. Some may complain to the first person they see while others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint and that is a matter for you to consider in the context of all the evidence in this case.

If a child or children are abused they are often subject to very mixed emotions and that may explain delay in making a complaint. Whether any of that applies here is very much a matter for you. There are sometimes in life, sometimes earlier, sometimes later, moments which can trigger a disclosure when suddenly it is easier to reveal what Mr Miric called "a dirty secret" when the need arises to disclose and speak out because of the situation in which they may find themselves. Never, you may think, an easy thing to do and you may think requiring some courage to do so.

Now let me make it clear that I make these observations to you not as directions of law but as things which in common sense and common experience and with a knowledge of the world you may like to consider in assessing whether there is some sinister or innocent explanation for the delay and whether it affects the honesty and truthfulness or accuracy of a child's evidence."

22. This discussion of the position is very much longer than we would have expected but it is important to provide the context that it occupies some three pages of transcript in a summing up that extends to some 94 pages; further, it is not one way. Mr Riza argued that, insofar as these observations were evidence-based, no issue could be taken with them, but most of them were not properly based on evidence that was adduced before the jury. He went on to suggest that, in giving guidance to the jury about the content of, rather than the approach to be taken in applying, common sense, experience and knowledge of the world, he encroached unlawfully on jury territory.
23. In recent years, the courts have increasingly been prepared to acknowledge the need for a direction that deals with what might be described as stereotypical assumptions about issues such as delay in reporting allegations of sexual crime and distress (see, for example, R v. MM [2007] EWCA Crim 1558, R v. D [2008] EWCA Crim 2557 and R v. Breeze [2009] EWCA Crim 255). Subsequent to this conviction, the Judicial Studies Board published a new Benchbook which deals with this issue in this way:

"The experience of judges who try sexual offences is that an image of stereotypical behaviour and demeanour by a victim or the perpetrator of a non-consensual offence such as rape held by some members of the public can be misleading and capable of leading to injustice. That experience has been gained by judges, expert in the field, presiding over many such trials during which guilt has been established but in which the behaviour and demeanour of complainants and defendants, both during the incident giving rise to the charge and in evidence, has been widely variable. Judges have, as a result of their experience, in recent years adopted the course of cautioning juries against applying stereotypical images how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time, or ought to appear while giving evidence, and to judge the evidence on its intrinsic merits. This is not to invite juries to suspend their own judgement but to approach the evidence without prejudice."

24. Mr Riza submitted that this approach offended the common law principle that judicial notice can only be taken of facts of particular notoriety or common knowledge and so provided to juries during the course of a summing up as established without evidence. That, however, is precisely what dealing with these generalisations is intended to do. As Latham LJ explained in R v. D, supra, (at para. 11):

"The judge is entitled to make comments as to the way evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. This was the reasoning behind the directions suggested in Turnbull in relation to identification and Lucas in relation to the treatment of lies. We think that cases where the defendant raises the issue of delay as undermining the credibility of a complainant fall into a similar category save clearly that the need for comment is in this instance to ensure fairness to the complainant. But any comment must be uncontroversial. It is no part of the judge's task to put before the jury Dr. Mason's learning [who had delivered a lecture on the topic to the Judicial Studies Board] without her having been called as a witness. However, the fact the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well-known to justify a comment to that effect. The suggested direction ... provides an example in very general terms of an appropriate form of directions which should be tailored to the facts of the case. In the present case, the judge was entitled to add to that general comment, the particular feelings of shame and embarrassment which may arise when the allegation is of sexual assault by a partner. He was also entitled to remind the jury of the way in which the complaint in fact emerged, as explained by the complainant herself."

25. The single judge did not consider it arguable that the direction in this case even arguably exceeded the boundaries set by Latham LJ and this court in the cases to which we have referred. Because, as we have suggested, the direction is somewhat lengthy, and in terms of balance possibly descends into rather more example than was necessary, we grant leave to argue the point but reject it.
26. Mr Riza also complains that the judge did not inform counsel before speeches that he would be giving these directions so that counsel was not able to address any of the points made or make any application for a special warning as a counter-weight in order, for instance, to inform the jury that until recently, the courts held the opposite view about the evidence of children. In our judgment, although directions of this type have been given for some years, it would have been better had the judge discussed them as part of the routine analysis of the 'directions' to be contained within the summing up which should take place before counsel's speeches in almost every case and certainly every case of this type. HiHHis failure to do so, however, does not undermine the safety of the convictions and, taken overall, there was no unfairness in the summing up.
27. We add only this. In this case, the jury were clearly aware of the need to exercise especial care when considering the evidence of Z. Her step-father was, as we have recounted, acquitted of all the allegations that he faced and although there is rightly no suggestion that the convictions of the appellant are inconsistent with those acquittals, the jury's attitude to the step-father clearly revealed a willingness to look sceptically at the evidence that Z gave. Having done so, however, they returned, by majority, adverse verdicts in relation to the five counts.
28. We do not consider that these verdicts are unsafe and, as a result, this appeal is dismissed.